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NY B86522




August 26, 1997

CLA-2-62:RR:NC:WA:353 B86522

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.4500; 6104.53.2020; 9503.90.0045

Mr. Geoffrey R. Greenberg
CDI - Creative Designs International, Ltd. Suite 822, Benjamin Fox Pavilion
Jenkintown, PA 19046

RE: The tariff classification of Dress-up sets from China

Dear Mr. Greenberg:

In your letter dated, July 28 1997, you requested a classification ruling. Two samples of the dress-up sets were submitted for examination.

The submitted sample sets are both designated as Item 8841 and will be imported in two styles. One style includes a ballerina tutu, tiara, wand and dress up shoes. The other style includes a ballerina tutu, wand, shoe tote and dress up shoes. You state that the shoes in each set only come in one size as they are meant to be used by girls ages 3 to 6.

You believe that Item 8841 should be classifiable in subheading 9503.70.00, HTSUSA, as "Other toys;....: Other toys, put up in sets or outfits,...: Other: Other."

ISSUE:

Whether the dress up set is classifiable in Heading 9503 or as festive articles of chapter 95 or of textile articles of fancy dress classifiable under chapter 61 or 62.

LAW AND ANALYSIS

In regards to your contention that the instant products should be classified in 9503.70.00 it has been the practice of the NIS for toys to follow the Subheading Explanatory Note for 9503.70 which specifically addresses the issue of dress-up sets. It states:

Subject to substantiated classification in heading 9503 and for the purpose of this subheading: (1) ....

(2) "Outfits" are two or more different articles put up in the same packing for retail sale without repacking, specific to a particular type of recreation, work, person or profession.

To be classified in 9503 as opposed to 9505, the item must be a dress-up set, not a costume. Since costumes are specifically wearing apparel, we have excluded from 9503 any retail item containing wearing apparel type items.

Dress-up sets classifiable in 9503.70 are limited to a combination of articles, most of which are toys, which would provide information as to the recreation, work, person or profession. Thus, a police man dress-up set would consist of a badge, toy gun, and toy handcuffs.

Under these restrictions, a ballerina dress-up set would be limited to her shoes and headpiece. The presence of her tutu makes the retail package a costume. The instant products can not be classified as GRI 1 toys. We can then examine the classification of these items using GRI 3.

The Explanatory Notes, which represent the official interpretation of the HTS at the international level, for GRI 3(b) define "goods put up in sets for retail sale." Such goods: (a) consist of at least two different articles that are classifiable in different headings, (b) consist of products put up together to meet a particular need or carry out a specific activity, and (c) are put up in a manner suitable for sale directly to users without repacking.

The first style of the "Dress Up Ballerina" consists of a tiara, tutu, wand and play shoes. It is agreed that the elements of a set, "a collection of articles put for one particular need or activity", have been met. The specified products, put up together, are clearly indicative of a costume whose sole purpose is to enable the child to imitate the role of a professional ballerina.

The second article in the "Dress Up Ballerina" line consists of a tutu, wand, tote bag and play shoes. This item fails to meet criteria (b), described above, as the activity of dressing up is unrelated to that of transporting personal articles in a bag. Whether considered by itself or with the other components of the retail package, the shoulder bag does not imitate something other than what it actually is. The bag is a fully functioning shoulder bag which may be used to store and transport any number of small articles. The fact that it may be used to store and carry the imitation ballet slipper's does not transform the bag into a play item. It's design is not overly mature and in fact is quite appropriate for a little girl to use in everyday activities. In contrast, the ballerina shoes are not constructed for practical use and the wand is a frivolous toy solely for amusement purposes.. Since the product fails as a set for tariff purposes each item must be separately classified.

The applicable subheading for the wand and play shoes will be 9503.90.0045, Harmonized Tariff Schedule of the United States (HTS), which provides for other toys: other: other toys and models. The rate of duty will be free.

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI's). The systematic detail of the harmonized system is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and ant relative section of the chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and the headings and legal notes do not otherwise require, the remaining GRI's may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRIs.

Heading 9505, HTSUSA, includes articles which are for "Festive, carnival, or other entertainment." It must be noted, however, that Note 1(e), chapter 95, HTSUSA, does not cover "fancy dress, of textiles, of chapter 61 or 62." The EN's to 9505, state that the heading covers:

(A) Festive, carnival or other entertainment articles, which in view of their intended use are generally made of non-durable material. They include:

(3) Articles of fancy dress, e.g., masks, false ears and noses, wigs, false beards and moustaches (not being articles of postiche- heading 67.04), and paper hats. However, the heading excludes fancy dress, of textile materials, of chapter 61 or 62.

In interpreting the phrase "fancy dress, of textiles, of chapter 61 or 62," Customs initially took the view that fancy dress included "all" costumes regardless of quality, durability, or the nature of the item. However, Customs has reexamined its view regarding the scope of the term "fancy dress" as it related to costumes. On November 15, 1994, Customs issued Headquarters Ruling Letter (HRL) 957318, which referred to the settlement agreement of October 18, 1994, reached by the United States and Traveler Trading. In HRL 957318, Customs stated that it had agreed to classify as festive articles in subheading 9505.90.60, costumes of a flimsy nature and construction, lacking in durability, and generally recognized as not being a normal article of apparel.

In view of the aforementioned, Customs must distinguish between costumes of chapter 95 (festive articles), and costumes of chapters 61 and 62 (articles of fancy dress). This can be accomplished by separately identifying characteristics in each article that would indicate whether or not it is of a flimsy nature and construction, lacking in durability, and generally recognized as a normal article of apparel.

Each of the tutus are made up of knit netting with an unfinished hem and feature a 2 1/4 inch wide stylized ruffled outer waistband with turned over edges and a 7/16 inch wide inner elastic band, that has been sewn with a double stitch. Although the hem of the tutus are unfinished, it is present on fabric that will resist runs/fray even with a raw edge. The overall amount of finishing is such that the tutus are neither flimsy in nature or construction, nor lacking in durability.

GRI 3(b) is applicable when goods are, prima facie, classifiable under two or more headings, and have been put up in sets for retail sale. GRI 3(b) states that the goods "shall be classified as if they consisted of the material component which gives them their essential character." In this case the sequinned crown, wands and wings are governed by GRI 3(b) because these items are packaged as accessories with a single garment wherein each item in the set is classifiable under a separate heading. Pursuant to GRI 3(b), however, the accessory items is the set are classified in accordance with that article from which the set derives its essential character. Customs believes that the essential character of costumes consisting of a single garment with accessories is generally imparted by that garment, which in this case is the tutu. For Item 8841 (Style that contains a tutu, tiara, wand and shoes) The applicable subheading for the tutu will be 6104.53.2020, Harmonized Tariff Schedule of the United States (HTS), which provides for "Women's or girls' suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted: Skirts and divided skirts: Of synthetic fibers: Other: Girls'." The rate of duty will be 16.7 percent ad valorem. The textile category designation is 642.

For Item 8841 (Style that contains a tutu, wand, shoe tote and shoes) The applicable subheading and textile category for the tutu will be as above.

The applicable subheading for the wand and play shoes will be 9503.90.0045, Harmonized Tariff Schedule of the United States (HTS), which provides for "Other toys: Other: Other toys and models." The rate of duty will be Free.

The applicable subheading for the shoe tote will be 4202.92.4500 (HTS), which provides for "Travel bags: Other: With an outer surface of sheeting of plastic or of textile materials: Travel, sports and similar bags: Other." The rate of duty will be 20 percent ad valorem.

Based upon international textile trade agreements products of China are subject to quota and the requirement of a visa.

The designated textile and apparel categories may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes. To obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your local Customs office.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Martin Weiss at 212-466-5881.

Sincerely,

Paul K. Schwartz
Chief, Textiles and Apparel Branch

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